Author: Glen A. Kendall

How Can I Get Out of My NY Contract?

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You can’t just get out of your contract because you want to. Rather, you can ask several questions to help determine whether there are valid legal arguments for you to defend against, rescind, or terminate a contract. Here are ten questions to consider if you’re wondering how to get out of your New York contract. 

1. Is there really a contract?

Offer, acceptance, and consideration are needed; the parties must come to an understanding, or in legal terms “a meeting of the minds.” Lilibet LLC offers to sell bracelets for $5 each; you counteroffer for $3 each. There’s no contract yet because you didn’t accept the offer. 

2. Is there an agreement to terminate?

The parties can agree to terminate the original agreement. However, the operative word here is “agree.” This means that the agreement must be mutual. Typically, this occurs in the early stages when neither party has relied on the other. However, it can occur at any time as long as both parties decide that they want termination. 

3. Is there a condition that wasn’t fulfilled?

If the parties base the contract conditionally on a certain event occurring (for example, a real estate purchaser acquiring financing) and that event hasn’t happened, then the other party doesn’t have an obligation to move forward. Whether a condition exists in the contract depends on the specific language and interpretation and that a condition can be waived, allowing the contract to continue. 

4. Is there fraud?

If fraud exists, the nonfraudulent party may move to void the contract. This means that it is treated as if the contract never existed. 

5. Is the contract legal?

If a contract is in violation of the law or against public policy, then it’s unenforceable, such as you can’t enforce a contract for the sale of stolen property. You may save a legal portion of the contract if it can be separated from the rest of the contract. 

6. Was there a mistake?

If the parties mistakenly assumed important information about the contract, or if one of the parties knew or should have known about the other party’s wrong belief, then the court can treat this as the contract is void. 

7. Is duress involved?

Duress occurs when an individual is pressured to enter the contract and they wouldn’t have agreed to the contract if it weren’t for the pressure. If the court rules that there was indeed duress, then you may get out of the contract. However, financial hardship is not typically considered duress. 

8. Is there a material breach?

If a party has materially breached the contract, then the other party doesn’t have to perform their part. It’s something that hits so thoroughly at the crux of the contract that it defeats the point of having the contract, such as your contract specifies the purchase of pool tables, and you receive dart boards instead. 

9. Is there lack of capacity?

The parties should have the legal capacity, meaning they can satisfy elements to enter the agreement. If a minor signs a contract to purchase a motorcycle, they can decide to either void the contract or enforce the deal because you usually have to have reached the age of majority. 

10. Can impossibility be used as a defense?

If a party can raise impossibility as a defense when an event makes it impossible to perform, then it works as an excuse for the non-performance. This is true as long as neither party assumed the risk of the impossibility.  

Consult with a Business Lawyer About Your Contract

There are many ways to avoid contractual claims. But it will depend on the facts of your case. Speak with an experienced business lawyer with your questions. You can reach one of our skilled MOWK Law attorneys right away to learn of possible options. Contact us now for details.

Understanding the Breach of Fiduciary Duty

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When your business hires employees or those who work on your behalf, you want them to behave in a way that suits your interests and is complementary to the company. When this doesn’t happen, not only is it a disappointment, but it may also be a violation of the law. An example of this is when there’s a breach of a fiduciary duty. Read on to find out information about how to recognize a breach of fiduciary duty and what you need to show if you’re going to sue. 

What is a Fiduciary Duty?

First, you should understand what a fiduciary is before you can understand their duty. This is simple enough: If an individual has a certain type of relationship with another (the principle) where they act on their behalf and in their interests, they can be considered a “fiduciary.” This includes employees of the principles. In their role as a fiduciary, they take on responsibilities, including the duty of loyalty and the duty of care, the duty of disclosure, and confidentiality.

How Do You Prove that There’s a Breach of Fiduciary Duties in NY?

If you want to show that there’s a breach of fiduciary duties in New York, you must establish the following:

  • The existence of a fiduciary relationship
  • Misconduct by the fiduciary
  • Your damages were directly caused by the fiduciary’s misconduct

Existence of a Fiduciary Relationship

If you’re a plaintiff suing a defendant for a breach of fiduciary duty, you first need to prove that there’s a fiduciary relationship between the two of you in the first place. In cases of employee/employer, that’s typically a given that there’s a relationship based on trust, good faith, and loyalty, which qualifies under the law.

Misconduct by the Fiduciary

Misconduct may occur when an employee doesn’t fulfill one of these duties. For example, if the employee/fiduciary makes a transaction where they will make their own money that goes against their employer/principal. More specifically, this could be viewed as a breach of the duty of loyalty. Or the employee might breach the duty of confidentiality if they post the company’s trade secrets on a social media platform.  

Damages Directly Caused by the Misconduct

Finally, you must show that your harm or damages were the direct result of the fiduciary’s misconduct. Using the above examples, an employer is harmed when the employee makes their own money from a deal because they are taking away compensation from the employer; when the employee discloses trade secrets, the employer suffers damages because the public knows something that they weren’t supposed to know, which could damage reputation or make it harder to compete in business.  

Contact an Experienced NY Business Lawyer about Breach of Fiduciary Duty

You expect your employers and those that work on your behalf to work in the best interests of your business. When they breach their fiduciary duties, you may be able to recover compensation for any harm that they’ve brought to you. Discuss your case with a skilled NY lawyer who understands the ins and outs of business law. Our Mowk Law attorneys are ready to hear your side of the story. Contact us today. 

What You Need to Know Before Purchasing a NY Multi-Family

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If you’re considering investing in multi-family properties, then you want to be informed before making this major purchase. You’re likely going into this endeavor with the intention of renting the units to generate revenue, but being a landlord isn’t for everyone. Read on to learn what you need to know before purchasing a New York multi-family.   

General Questions to Ask 

Before you zero in on potential properties, there are some general considerations to make. Ask these questions. 

  • What is your available capital? – Prepare to buy a multi-family property to reduce the purchase price by at least 20 percent. You should also overestimate the closing costs and reserve requirements.  
  • How much are you willing to participate? – Even if you’re less hands on and you employ a property manager, the time and commitment needed (especially initially) is considerable. 
  •  What are the revenue requirements? – If you intend to base any part of your decision on how much money you can make, you must consider your revenue investment.
  • What are the risks? – Always be mindful of your risk tolerance. For example, crowdfunding may carry numerous risks including fraud and questionable returns, while other means may produce more consistency and continual appreciation.

When you’ve narrowed down your search after considering things like location, layout and size, here are important things to know about the specific properties:

  • Current Rental Rates: You want to stay current with existing rent prices in the area because your cash flow from the property will be based on how much rent you can receive. By being aware of the current rents, you can help to ensure that your rental rates are in sync with comparable parties and can adjust accordingly. 
  • Current Occupancy Rates: It’s important to know this before you make an offer. The occupancy rate directly affects the rental income that the property produces, so this information will help to ensure that the property will actually generate the income you need. 
  • Current Leases: You want to be able to know about the agreement of terms that are in effect for current tenants. As a potential buyer, you can request a copy from the owner; owners generally are required to keep them on file.    
  • Turnover Rates: If there’s a constant back and forth, this means more wear and tear, as opposed to more consistency with long-term tenants and stability, which means easier maintenance. 
  • Recent Maintenance: As a future landlord, consider hiring a home inspector to uncover any possible hazards (such as lead, asbestos) before proceeding with the purchase. 
  • Legal Disputes: It is essential to discover any legal disputes between current tenants and the owner. By inquiring about this, you can gain more understanding about the potential legal risks you could face if you buy the property. 
  • Utility Bills: Water, electric, and gas are all necessary expenses that will have to be paid every month; this information will help to assess the potential income of the property. 
  • Commission Rebate: A commission rebate allows a buyer’s agent to give them a part of the commission that the agent gets for representation. Be sure to find a broker who offers them before you hire one to represent you on a multi-family purchase. It can make the purchase more affordable and allows you to use the saved money on other things.  

Talk to a NY Real Estate Lawyer Today

If you’re considering getting into real estate investments with a multi-family property, you will want to ensure that it’s a smooth process. Get in touch with one of our MOWK Law lawyers who can help you navigate through the New York market. Just contact us today to learn more.

What Should I Know About the Trademark Modernization Act?

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Intellectual property rights are a significant aspect of any business. With that in mind, it’s important to be aware of recent changes implemented by the U.S. Patent and Trademark Office (USPTO). On December 18, 2021, the Trademark Modernization Act of 2020 (TMA) took effect. Read on to learn about this federal law may impact your New York business. 

Transitioning from Paper to Electric

One of the things that the TMA does is to update procedures. In order to change and modernize the system, the USPTO moved from paper trademark applications and registration to the electronic form. This move was intended to give trademark owners an easier path to their trademark certificates when registered. The USPTO recognizes that most trademark owners favor receiving trademark registration certificates in a digital format rather than as a paper certificate, and made the switch, allowing owners to get registration certificates more quickly.

Removing Old Trademarks

Trademarks that are registered but not in use are considered “deadwood” registrations. When a mark registers, the registrant needs only to submit proof of use at six years, 10 years, and every 10 years after. Because of this, marks would stay on the Trademark Register for years even though they aren’t being used. This act as barriers to implementing new brands, preventing parties from registering similar marks for similar goods or services. 

Ex Parte Expungement and Reexamination

To deal with the problem of old marks crowding the Register, the TMA addresses it with a new set of ex parte processes, “expungement”, and “reexamination.” Reexamination allows petitions using a technical standard. Rather than an extensive unused basis, the petition allows for an expungement of all or a portion of the mark if it wasn’t used correctly by the application date or by the statement of use deadline. The petitions apply to trademarks in place after five years of their inception.    

They can be filed with the USPTO either by third-party petitioners or the USPTO can initiate an expungement on reexamination on its own.  

Letters of Protest Window Expanded

The TMA has also changed the way that the USPTO deals with the process for letters of protest. Before the TMA went into effect, the letter of protest process allowed a third party to get involved in a trademark request within 30 days of its publication. 

However, now the USPTO is required to include protest letters up to two months after publication, which means that there is a more comprehensive opportunity for the issue to be recognized. It also forces fliers to be more proactive when it comes to anticipating challenges; they should work to ensure that they perform proper due diligence, keep a through chain of custody on records and confirm usage on the first date of usage for the goods and services.   

Patent Review

Patent owners should also take note of the inter partes review, a relatively recent trial process. Here, a new challenge to a patent occurs when a party argues that authorization was already taken by prior patented art. 

This review is prompted when a third-party files up to nine months after a patent is granted/reissued or if a post grant review is authorized. Either way, you as an owner must respond. However, completing your due diligence and researching information can help to avoid this in the first place. 

Get Help from IP Lawyers in NY 

For many businesses, your trademark, copyright, or patent is one of your primary assets, so it’s well worth protecting. With the TMA’s introduction of new examination procedures and stronger presumptions for protection, you may likely benefit. If you need guidance, please reach out to a MOWK Law attorney who can assist you with your intellectual property issues. Contact us today to see how we can help you.

How Are Trade Secrets Protected in NY?

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You can’t underestimate how significant trade secret protection can be when it comes to your business. These intellectual property rights for confidential information can serve an important role in establishing and maintaining certain aspects of any company. Read on to learn pivotal information about how the law protects trade secrets in New York. 

What Qualifies as a Trade Secret in NY?

You have a recipe, formula, or other information that’s special to your business. But you first need to know whether it’s a trade secret before you can reap the benefits of legal protection. 

A trade secret is something that you can use in your business that provides some advantage over your competitors. This can be anything from a recipe for cupcakes to a skin care formula. Basically, it’s anything that distinguishes you from the other guys: You have something that they don’t, something that they don’t know and can’t use.   

Trade secrets are governed by both state and federal law. Since New York doesn’t have any trade secret statutes and doesn’t recognize the Uniform Trade Secrets Act (UTSA), the trade secret protection stems entirely from common law. This does feature many of the same safeguards as the UTSA.

New York courts will look at six factors to determine whether the information is considered a trade secret. 

  1. Value of the information to the business and to your competitors
  2. The extent that the information is known externally
  3. The extent that the information is known with those inside the business
  4. The extent of the effort used by your business to assist in ensuring the secrecy of the information
  5. The amount of effort or money exerted by you in developing the information
  6. The ease or difficulty with which the information could be obtained or copied

Trade Secret Violations

Once it’s determined that a trade secret exists, the next step is to determine whether there’s a violation. However, the secret is entitled to protection so long as the information is actually secret; if the information is leaked to the public, it loses the trade secret protection. 

Misappropriation

When someone uses your trade secret without your permission or straight up steals it, it is considered “misappropriation.” However, mere use doesn’t qualify; there is misappropriation if the trade secret is used without permission of the owner.  

The party who uses your trade secret information must have either obtained the information improperly or used the trade secret, which stemmed from a breach of a confidence, for instance, the information was acquired via employment relationship. 

What Relief is Available for a Trade Secrets Violation?

If you file a lawsuit, the court can issue an injunction that will stop further disclosure of your trade secret. Money damages are also available. Additionally, you may even be able to recover the profits that the wrongdoer made due to the misappropriation.  

Contact an Experienced NY Attorney about Trade Secrets

Trade secrets can make the difference in your business’ success. That’s why it’s such a shock if you believe someone has stolen this valuable asset. Get help with addressing this issue with an efficient and dedicated MOWK Law attorney familiar with trade secrets law. Contact us now to see what can be done about your case.

Understanding Misrepresentation in New York Business Disputes

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Before committing to a contract or deal with another company, you likely want to protect your New York business entity by preparing and negotiating. Part of the conversation may include the expectations of duties and responsibilities when it comes to contract drafting. This can take a major turn if one party is not candid about what they can deliver and perform. Misrepresentation can play a major role in your New York business dispute. Read on to learn about the various forms of misrepresentation.

What is a Misrepresentation?

Misrepresentation in its basic form is the act of providing a false or misleading account. It can come in various forms, with each having the possibility of triggering highly contentious business disputes.  

Fraudulent Misrepresentation

A typical fraudulent misrepresentation has one party making a false statement to the other party, which results in the deal or agreement between the parties to be based on an untruth, or false premise. This means that the contract would be invalid if the falsehood has a material effect on the agreement. For instance, you only agree to make a deal for a company to be your café’s vegetable supplier because they have assured you that the produce is organic. Later, you learn that the company rep lied, and the vegetables aren’t organic.  

The fraudulent misrepresentation can be made via something that the party said to the other, wrote to the other, or can even be through nonverbal action such as a gesture; silence can even be considered as a misrepresentation. 

What Do You Have to Prove for Fraudulent Misrepresentation?

In order to prevail, a plaintiff must show the following:

  • That the false representation was made 
  • That the representation was known to be false at the time it was made or that it was made recklessly without knowledge of its truth
  • That the representation was made with the intention that the other party would rely on it
  • The other party did in fact rely on the representation 
  • That the plaintiff suffered damages as a result of the reliance on the representation

Negligent Misrepresentation

Negligent misrepresentation occurs when an individual makes a statement or issues a certificate, with knowledge that this is necessary for a specific aim. The individual also knows that others are relying on the accuracy of the statement (to their detriment) and then the individual fails to take reasonable care to ensure that the statement is accurate, causing harm to the others.  

This differs from a fraudulent misrepresentation in that, it does not require proving malicious intent. Rather, the plaintiff needs to show the following:

  • That the other party was aware that the statement was going to be used for a particular purpose
  • Some conduct by the wrongdoer linking them to the plaintiff and some showing that they knew about the reliance 
  • The wrongdoer’s statements exaggerated or misstated facts
  • That the misstatements resulted from the wrongdoer’s negligence and/or lack of due diligence 
  • That the plaintiff relied on the misstatements
  • That the plaintiff suffered damages as a result

Innocent Misrepresentation

This occurs by a mistake when a party makes a false statement, but they believe that the information that they have given is accurate and true. 

Talk to a New York Attorney about Misrepresentations
When business dealings are impacted by allegations of misrepresentations, all the affected parties may wonder about what to do to protect their interest. This is when it makes sense to turn to an experienced business law attorney. You can depend on the expertise of a MOWK Law attorney who can assess your situation and provide viable options, regardless of the type of misrepresentation involved. Get in contact with us today.

Can a New York Business Refuse Entry to Individuals Not Able to Wear a Mask?

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In an effort to help curb the spread of COVID-19, protect workers on the job and business patrons, and continue reopening New York, Governor Cuomo signed an Executive Order that permitted businesses to deny entry to any individuals not wearing either a mask or a face covering. Though the order sounds like a sweeping decree that everyone must wear a mask or risk entry refusal, both places of public accommodation as well as all employers must still comply with the Americans with Disabilities Act (ADA) when it comes to individuals physically or medically incapable of complying with mask requirements. 

Customer-Related ADA Considerations

Though the Executive Order broadly states anyone not wearing a mask may be denied entry to a business, this runs counter to the CDC’s stated guidance that several groups should be exempt from wearing masks. These include:

  • Children under 2 years of age
  • Individuals with breathing problems
  • Incapacitated persons
  • Unconscious persons
  • Persons needing assistance to remove a mask or face covering

Though businesses may have discretion as to whether they deny entry to some of these individuals, the linchpin issue is that even during the COVID-19 pandemic businesses must reasonably accommodate customers unable to wear a face covering or mask because of a disability. This means the ADA still applies during COVID-19. 

General ADA Requirements During COVID-19

Under the ADA, businesses open to the general public must provide equal access to its services and goods to disabled individuals. In essence, businesses must reasonably modify their procedures and policies so disabled individuals have equal access. This includes customers who cannot wear a mask –those who merely object to wearing one may rightfully be denied entry.

Reasonable Accommodations

What qualifies as a reasonable accommodation will depend on the services provided or goods sold by the business in question. In most cases, there will be ways to tailor their practices or procedures to meet an individual’s needs. These accommodations may include:

  • Curbside pickup
  • Designated shopping hours 
  • Allowing entry if the individual can safely wear a full-faced shield rather than a mask
  • Online shopping and contactless pickup or delivery; however, any website or app used for ordering must also be accessible to disabled individuals. 

Posting signs at businesses entrances can also be helpful in avoiding improper refusal; notifying customers of their ability to request accommodations if they are unable to wear a mask may help prevent ADA violations and preserve a positive relationship with disabled customers. 

New York Business Transactions Lawyer

As customers begin returning to businesses, it’s in the best interest of business owners, managers, and employees to keep customers both safe and happy. However, they must still abide by federal, state, and local COVID-19 regulations as well as other laws protecting individuals’ rights. Harmonizing these responsibilities can understandably become confusing; this is why the experienced New York business transactions lawyers at MOWK Law are here to help with the balancing act. We can assist you in finding reasonable accommodations to stay ADA compliant that still work with the policies and practices that have made your business a success. Contact us today with your questions to learn more.